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Trivent Publishing
© The Authors, 2016
Available online at http://trivent-publishing.eu/
Series: Philosophy, Communication, Media Sciences
Volume: Communication Today: An Overview from Online Journalism to Applied Philosophy
The Role of the Court of Justice
of the European Union's Rulings
in Matters of Asylum and Immigration
Lavinia Andreea Bejan
SOP HRD/159/1.5/S/133675 Project, Romanian Academy Iasi Branch, Romania
Abstract
By analyzing relevant case-law of the Court of Justice of the European Union, such as C-405/07
Elgafaji, C-31/09 Bolbol, C-411/10 N.S., joined with C-493/10 M. E. and others, C-4/11 Kaveh Puid,
the present paper aims to clarify the manner in which the jurisprudence of the Court of Justice of the
European Union contributed to the interpretation of European Union legislation regarding asylum
and migration, and, subsequently, how it referred to other relevant international or regional treaties.
Also, the paper aims to offer a fair assessment of the importance of the rulings of the Court in matters
of asylum and immigration.
Keywords
1951 Geneva Convention on the Status of Refugees; European Union; right of asylum; immigration;
the European Court of Human Rights; the Court of Justice of the European Union; Dublin
Regulations; the Qualification Directive; preliminary rulings.
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I. Introduction
The multiplication of the number of migrants from third-countries within the borders of the European
Union in recent years raised a number of important issues regarding the overall functioning of the EU,
from an institutional perspective. Some concern the deficiencies of EU legislation and its application
in matters of asylum and immigration, as well as the shy attempts at better regulating and enforcing
the relevant existing rules, some - the lack of appropriate reactions and responses on the institutional
level.
If we are to consider Jean Claude Juncker's first State of the Union (September 9, 2015), and the
claimed promise that “the Commission will come forward with a well-designed legal migration
package in early 2016,” legislative reform does not seem to occur too soon. At the same time, on
September 23, 2015, the European Commission issued a Communication to the European Parliament,
the European Council and the Council regarding “Managing the Refugee Crisis: immediate
operational, budgetary and legal measures under the European Agenda of Migration,” stating both that
the Dublin Regulation needs to be revised, and that a special attention “needs to be paid to Greece to
prioritize the normalization of the situation and a return to the Dublin system within the next six
months” - the impossibility of transfers back to Greece as “state responsible” according to Dublin
came through a judicial channel.
In this context, an analysis of the role of the Court of Justice of the European Union in matters of
asylum and immigration is necessary (and shall be done particularly using qualitative research
methods such as historical research, documentary analysis, case studies on the most relevant decisions
of the Court of Justice of the European Union in terms of asylum and migration), given the fact that
the Court has the possibility to interpret EU legislation (through preliminary rulings) and to ensure that
the EU legislation is applied in the same manner in all EU member states, to annul EU pieces of
legislation that breach fundamental rights or the Treaties, to sanction EU institutions and so on.
The paper will discuss the compliance by EU law with the 1951 Geneva Convention relating to the
Status of Refugees as established by the Court, questions regarding the serious and individual threat to
the life of a person in light of accepting the request for subsidiary protection, questions regarding
identity controls in border areas, as well as the issue of the Dublin system enforcement when the
according responsible state shows systemic deficiencies in the asylum procedure and in the reception
conditions of the asylum seekers that amount to substantial grounds for believing that the asylum
seeker would face a real risk of being subjected to inhuman or degrading treatment or other
fundamental rights. Moreover, the paper aims to identify possible manners in which the decisions of
the Court could be taken into consideration in situations regarding the current migrant crisis (for
instance, could transfers back to Hungary, for instance, or other states of entry for migrants be
suspended on the same grounds transfers were suspended towards Greece?). Finally, the importance of
the Court of Justice of the European Union in matters regarding asylum and immigration is to be fairly
assessed.
II. The 1951 Geneva Convention and European law
On the international, general level (within the United Nations framework), the 1951 Geneva
Convention relating to the Status of Refugees (most commonly referred to as the 1951 Refugee
Convention) is the most important legal instrument regarding the protection of this vulnerable
category of individuals. The Convention defines the refugee as a person who, “owing to well-founded
Lavinia Andreea Bejan
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fear of being persecuted for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.”1 The temporal and spatial limitation that the 1951 text
contained (“as a result of events occurring before 1 January 1951,”2 further explained as: either
“events occurring in Europe before 1 January 1951” or “events occurring in Europe or elsewhere
before 1 January 1951”3) were eliminated by the 1967 Protocol to the Convention, hence no longer
apply, and the Convention now has a potentially universal character. Moreover, many of its provisions
are now considered customary law, which should solve the issue of its application regarding non-party
states - as of April 2015, there are 145 states parties to the Convention, 146 to the 1967 Protocol, and
142 to both.4 The 1951 Convention establishes principles of utmost importance regarding refugees,
such as non-discrimination (“The Contracting States shall apply the provisions of this Convention to
refugees without discrimination as to race, religion or country of origin”5), non-penalization (“The
Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees
who, coming directly from a territory where their life or freedom was threatened in the sense of article
1, enter or are present in their territory without authorization, provided they present themselves
without delay to the authorities and show good cause for their illegal entry or presence”6) and non-
refoulment (“No Contracting State shall expel or return - <refouler> - a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political opinion”7).
In what concerns the preoccupation towards refugees in the European states, two mechanisms need
to be taken into consideration, namely the Council of Europe, with its European Convention on
Human Rights and its European Court of Human Rights, and the European Union, with its treaties, its
Fundamental Charter and its Court of Justice.
The European Convention on Human Rights does not contain a specific article regarding refugees,
a “right of asylum.” However, the European Court of Human Rights expanded, through its
jurisprudence, the protection of the rights recognized in the Convention even upon refugees.
Especially in what regards Article 3 of the ECHR (prohibition on torture and inhuman or degrading
treatment or punishment), but also in terms of Article 2 (right to life), Article 6 (right to a fair trial),
Article 7 (freedom from retroactive criminal offences and punishment), Article 8 (right to respect for
family and private life) etc., the Court argued that it does have competence over asylum cases,
regardless of whether there is or isn't a specific right to asylum in the text of the Convention, which
led, in such cases, to what is deemed as a form of extraterritorial application of the Convention. Ever
since the famous case of Soering v. The United Kingdom, 1989 (and restated in cases such as Cruz
Varaz and others v. Sweden, 1991, Vilvarajah v. The United Kingdom, 1991, Chalal v. The United
Kingdom, 1995, Saadi v. Italy, 2008, and many others), the Court affirmed and reaffirmed that,
although the member states are not held liable for committing a direct breach of the Convention, they
1 Convention relating to the Status of Refugees, Geneva, 28 July 1958, Article 1 (A) (2). 2 Ibidem. 3 Ibidem, Article 1 (B) (1). 4 Official data provided by the United Nations High Commissioner for Refugees,
http://www.unhcr.org/3b73b0d63.html. 5 Convention relating to the Status of Refugees, Geneva, 28 July 1958, Article 3. 6 Ibidem, Article 31. 7 Ibidem, Article 33.
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can be indirectly held liable for removing an alien on the territory of a state in which the rights
provided for in the Convention are at risk of being breached. This rationale gave birth to what is
known as “protection par ricochet', and applies regardless of the form of removal”8 - extradition,
expulsion and so on, as the Court stated in the aforementioned judgments. But the vast jurisprudence
of the European Court of Human Rights in the field had larger effects than the individual decisions - it
influenced the practice of European states in what concerns the treatment of aliens and clarified how
the obligations of states towards them should be interpreted, and it also highly influenced the manner
in which the European Union, as an institution, as well as its specific mechanisms, were to deal with
the issue of asylum.
In what concerns the European Union and the previous Communities, the preoccupation for
fundamental human rights is rather a recent one, the constitutive treaties of the European Communities
recognizing only liberties such as the free movements of goods, capital and persons and the free
delivery of services, therefore liberties related to the economic field,9 far from representing
“fundamental rights” or translating an interest in the human being as such. However, the Treaty of
Maastricht does provide for the commitment of the European Union to respect fundamental rights:
“The Union shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as
they result from the constitutional traditions common to the Member States, as general principles of
Community law”10 - also establishing, thus, a commitment towards the European Convention on
Human Rights. The Treaty of Amsterdam adds that “The Union is founded on the principles of liberty,
democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which
are common to the Member States”11 (hence, these principles are now fundamental ones), and includes
a mechanism for sanctioning the member states that breach these rights and freedoms, and even
conditions the accession to the EU by the observance of human rights. Therefore, the preoccupation
for the field of human rights, also proved by the possibility of the Court of Justice to refer to such
issues (to breaches of the F.2 Article), increased considerably. The adoption of the Charter of
Fundamental Rights of the European Union (in Nice, December 7, 2000, within the same European
Council as the Treaty of Nice) and granting it the status of legally binding on the EU institutions and
on the governments of the member states (through the Treaty of Lisbon), as well as the steps towards
the accession of the EU to the European Convention of Human Rights lead to believe that, in the past
two decades, the EU is trying to transform respect for human rights into a much more significant issue
in the Union. Until this accession, the Charter specifically provides that ‘In so far as this Charter
contains rights which correspond to rights guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those
8 Frédéric Sudre et al., Marile hotărâri ale Curții Europene a Drepturilor Omului [The great decisions of the
European Court for Human Rights] (Iași: Editura Polirom, 2006), 134-135. 9 Jean-François Renucci, Tratat de drept european al drepturilor omului [Traité de Droit européen des droits de
l'homme] (Bucharest: Editura Hamangiu, 2009), 18. 10 Treaty on European Union, Maastricht, 7 February 1992, Article F.2 11 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European
Communities and certain related acts, Amsterdam, 2 October 1997, Article 1.8 (a)
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laid down by the said Convention”12 - which leads some to state that “the ECHR is partially
incorporated in the Charter and thus in EU primary law.”13
In what concerns the issue of the refugees, the consolidated version of the Treaty on the
Functioning of the European Union states, in Title V – “Area of Freedom, Security and Justice” that
“The Union shall develop a common policy on asylum, subsidiary protection and temporary protection
with a view to offering appropriate status to any third-country national requiring international
protection and ensuring compliance with the principle of non-refoulement. This policy must be in
accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating
to the status of refugees, and other relevant treaties.”14 Continuing the preoccupation in the field that
started with the Treaty of Amsterdam, various Directives and Regulations are specifically designed to
ensure a Common European Asylum System: Council Directive 2005/85/EC of 1 December 2005,
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 (recast),
Council Directive 2003/9/EC of 27 January 2003, Directive 2013/33/EU of the European Parliament
and of the Council of 26 June 2013 (recast), Council Directive 2004/83/EC of 29 April 2004, Directive
2011/95/EU of the European Parliament and of the Council of 13 December 2011 (recast), Council
Regulation (EC) No 343/2003 of 18 February 2003, also known as Dublin II, Regulation (EU) No
604/2013 of the European Parliament and of the Council of 26 June 2013, also known as Dublin III
etc.
The 1951 Geneva Convention plays a highly important role in the application of these documents:
for instance, the Qualification Directive 2004/83/EC applied to many of those in need of subsidiary
protection but who were not Geneva Convention refugees, while the Dublin II Regulation refers only
to those who seek Geneva Convention refugee status.15
Moreover, the Charter of Fundamental Rights of the European Union specifically provides for a
right of asylum, unlike the ECHR, right that “shall be guaranteed with due respect for the rules of the
Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of
refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of
the European Union.”16
The Court of Justice of the European Union only obtained full competence in matters of asylum
through the Treaty of Lisbon, which abolished the restrictions provided for in the Treaty of
Amsterdam in the field,17 and that explains why the preoccupation of the Court of Justice in this matter
was only noticeable ever since 2009-2010. The ECHR had fulfilled the role of dealing with asylum
seekers and refugees through the “protection par ricochet,” yet, in recent years, the Court of Justice
continues and completes the work of the ECHR, especially through the mechanism of preliminary
rulings.
12 Charter of Fundamental Rights of the European Union (2012/C 326/02), Article 52.3 13 W. Weiß, "Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights After
Lisbon", 7 European Constitutional Law Review (2011) 1: 70, quoted in L. Lavrysen, "The European Asylum
Law and the ECHR: An Uneasy Coexistence", in Goettingen Journal of International Law 4 (2012) 1: 222. 14 Consolidated version of the Treaty on the Functioning of the European Union, Article 78 15 Nuala Mole and Catherine Meredith, Asylum and the European Convention on Human Rights (Council of
Europe Publishing: 2010), 79, http://www.refworld.org/pdfid/4ee9b0972.pdf (accessed January 15, 2016). 16 Charter of Fundamental Rights of the European Union (2012/C 326/02), Article 18. 17 For details, see Marie de Somer, Enhanced competences for the European Court of Justice: “Re-shuffling” the
dynamics of EU migration policy-making?, London School of Economics Migrations Study Unit Working
Papers no. 2012/01 (London: London School of Economics and Political Science, 2012), 11, http://www.lse.ac.uk/government/research/resgroups/MSU/documents/workingPapers/WP_2012_01.pdf
(accessed January 15, 2016).
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III. Relevant Case-law of the Court of Justice of the European Union
The European Court of Human Rights was and still is often inquired in issues regarding the
application of EU pieces of legislation. The Dublin II Regulation, which stated that responsibility for
examining the asylum claim belonged to the first European Union country in which the asylum seeker
enters, was particularly targeted, since it determined serious issues regarding the transfers back to the
states of entry, seen by numerous plaintiffs as breaches of Article 3 of the European Convention on
Human Rights. As mentioned before, the ECtHR has been highly sensitive to issues regarding Article
3, hence it heard and ruled on multiple cases involving possible breaches, even caused by the
application of EU pieces of legislation, and its jurisprudence in the field, developed over more than
two decades, influenced considerably the jurisprudence of the CJEU. Although it seems that the
ECtHR is still the preferred European court to rule in matters related to asylum (if only we take into
consideration the number of cases brought in front of the two), the case-law of the CJEU did bring
important developments in the field.
One of the first groundbreaking judgments of the Court of Justice (at that point, of the European
Communities) in the field of asylum was given in the Elgafaji case,18 a request for preliminary ruling
regarding the Qualification Directive, Directive 2004/83/EC of 29 April 2004. On 13 December 2006,
Mr. and Mrs. Elgafaji submitted applications for temporary residence permits in the Netherlands,
together with evidence seeking to prove the real risk to which they would be exposed if they were
expelled to their country of origin (Irak), relying, in particular, on fact relating to their personal
circumstances (for instance, they pointed out that Mr. Elgafaji’s uncle, employed by the same British
firm where Mr. Elgafaji was working, had been killed by militia, his death certificate stating that his
death followed a terrorist act. A short time later, a letter threatening “death to collaborators” was fixed
to the door of the residence which Mr. Elgafaji shared with his wife, a Sunni Muslim). Mr. and Mrs.
Elgafaji requested temporary residence permits in the Netherlands, which was refused by the
competent authorities, on grounds that the two had not proved satisfactorily the circumstances on
which they were relying and, therefore, had not established the real risk of serious and individual
threat to which they claimed to be exposed in their country of origin19. The applicants brought actions
against this decision, and the Hague District Court they had addressed to decided in their favour. On
appeal, however, the Council of State held that there were difficulties in interpreting the relevant
provisions of the Qualification Directive. It held, furthermore, that Article 15(c) of the Directive had
not been transposed into Netherlands law by 20 December 2006, the date on which the Minister’s
contested orders were made.20 Article 15 of the mentioned Directive, under Chapter V - Qualification
for subsidiary protection - refers to serious harm, and defines it as “(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin;
or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in
situations of international or internal armed conflict.” The Minister for Immigration and Integration,
which had denied the residence permit, argued that the standard of proof required for the protection
granted under Article 15(b) of the Directive is identical to that required for the protection granted
under Article 15(c), and therefore the applicants are required to show satisfactorily, in their individual
circumstances, the risk of serious and individual threat to which they would be exposed were they to
18 Judgment of the Court of Justice in Case C-465/07 Meki Elgafaji and Noor Elgafaji v. Staatssecretaris van
Justitie, 17 February 2009. 19 Ibidem, par. 17-19. 20 Ibidem, par. 21-25.
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be returned to their country of origin. The Hague District Court considered, however, that Article
15(c) of the Directive takes into consideration the existence of armed conflict in the country of origin
of the applicant seeking protection, and does not require the high degree of individualisation of the
threat required by Article 15(b) of the Directive and by the subsequent article of national legislation
through which this provision transposed. Therefore, in the opinion of the Hague District Court, 'the
existence of a serious and individual threat to the persons seeking protection can be proved more
easily under Article 15(c) of the Directive than under Article 15(b)', and, in the given situation, 'the
proof required under Article 15(c) of the Directive had been aligned with that required in the
application of Article 15(b) of the Directive.21
In those circumstances, the Council of State, on appeal, decided to stay proceedings and to refer
two questions to the Court of Justice for a preliminary ruling. First of all, it asked whether Article
15(c) is to be interpreted as offering protection only in a situation in which Article 3 of the ECHR, as
interpreted in the case-law of the European Court of Human Rights, also has a bearing, or whether
Article 15(c), in comparison with Article 3 of the ECHR, offers, in fact, supplementary or other
protection. Secondly, the Council of State asked, in the event that Article 15(c), in comparison with
Article 3 of the ECHR, does offer supplementary or other protection, what are the criteria for
determining whether a person who claims to be eligible for subsidiary protection status runs a real risk
of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c)
of the Directive, read in conjunction with Article 2(e).22 This Article defines a “person eligible for
subsidiary protection' as 'a third country national or a stateless person who does not qualify as a
refugee (defined in Article 2(c) of the same Directive - N/N), but in respect of whom substantial
grounds have been shown for believing that the person concerned, if returned to his or her country of
origin (...) would face a real risk of suffering serious harm as defined in Article 15, and to whom
Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or
herself of the protection of that country.”
The Court of Justice clarified that, “while the fundamental right guaranteed under Article 3 of the
ECHR forms part of the general principles of Community law, observance of which is ensured by the
Court, and while the case-law of the European Court of Human Rights is taken into consideration in
interpreting the scope of that right in the Community legal order, it is, however, Article 15(b) of the
Directive which corresponds, in essence, to Article 3 of the ECHR. By contrast, Article 15(c) of the
Directive is a provision the content of which is different from that of Article 3 of the ECHR, and the
interpretation of which must, therefore, be carried out independently, although with due regard for
fundamental rights, as they are guaranteed under the ECHR.”23
After carefully analyzing the three types of “serious harm” defined in Article 15 of the Directive,
which constitute the qualification for subsidiary protection, the Court of Justice decided that Article
15(c), in conjunction with Article 2(e), must be interpreted as meaning that (1) “the existence of a
serious and individual threat to the life or person of an applicant for subsidiary protection is not
subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of
factors particular to his personal circumstances” and that (2) “the existence of such a threat can
exceptionally be considered to be established where the degree of indiscriminate violence
characterising the armed conflict taking place (...) reaches such a high level that substantial grounds
are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the
21 Ibidem, par. 20, 23, 24. 22 Ibidem, par. 26. 23 Ibidem, par. 28.
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relevant region, would, solely on account of his presence on the territory of that country or region, face
a real risk of being subject to that threat.”24 Hence, the Court assessed that an applicant for subsidiary
protection (one who does not fall within the 'refugee' definition, according to Article 2(c) of the
Qualification Directive) is not necessarily required to prove that the is specifically targeted in his
country of origin due to his personal circumstances, and the degree of indiscriminate violence in the
applicant’s country of origin can be enough reason to believe that, if returned to that country, he/she
would face a real risk of being subjected to serious individual threat.
Regarding the same Qualification Directive (Directive 2004/83/EC), the Court gave an
interpretation of the conditions required by the 1951 Geneva Convention for the status of refugee to be
granted, in the Bolbol case,25 also a request for a preliminary ruling. Ms. Bolbol, after leaving the Gaza
Strip in the company of her husband, arrived in Hungary on 10 January 2007, with a visa. She was
granted a residence permit from the immigration authority. On 21 June 2007 she submitted an
application for asylum to the Office for Immigration and Citizenship in Hungary, invoking the unsafe
situation in the Gaza Strip caused by the daily clashes between Fatah and Hamas. The ground for her
request was Article 1D, the second subparagraph, of the Geneva Convention, pointing out that she was
a Palestinian residing outside UNRWA’s area of operations (United Nations Relief and Works Agency
for Palestine Refugees in the Near East - N/N). However, it seemed, despite the steps taken by Ms.
Bolbol at UNRWA, that she had not availed herself of the protection or assistance of UNRWA, and
her right to be registered on the basis of her family connections had been unable to confirm.26 Article
1D of the Geneva Convention, in its first subparagraph, states that the Convention “shall not apply to
persons who are at present receiving from organs or agencies of the United Nations other than the
United Nations High Commissioner for Refugees protection or assistance,” and, in its second
subparagraph, that Ms. Bolbol invoked, states that, “when such protection or assistance has ceased for
any reason, without the position of such persons being definitively settled in accordance with the
relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso
facto be entitled to the benefits of this Convention.”
Ms. Bolbol has requested the referring court to vary the negative decision received from the Office
for Immigration and Citizenship, and to grant her refugee status pursuant to the second subparagraph
of Article 1D of the Geneva Convention. In her view, this Article is a separate basis for recognition as
a refugee and, since she meets the conditions laid down in that provision, she is entitled to recognition
as a refugee irrespective of whether she qualifies as a refugee under Article 1A. The purpose of Article
1D, as Bolbol sees it, is to make clear that, when a person registered or entitled to be registered with
UNRWA resides, for any reason, outside UNRWA’s area of operations, and, for good reason, cannot
be expected to return there, the States party to the Geneva Convention must automatically grant
him/her refugee status. In view of the fact that, through her father, she is entitled to be registered with
UNRWA, but resides outside its area of operations (in Hungary), she should be recognised as a
refugee without further examination.27 The Office for Immigration and Citizenship, however, argued
that Ms. Bolbol did not leave her country for any of the reasons set out in Article 1A of the Geneva
Convention, and that Article 1D does not automatically grant a basis for refugee status, hence
Palestinians are entitled to refugee status only where they meet the definition of “refugee” within the
24 Ibidem, Ruling . 25 Judgment of the Court of Justice (Grand Chamber) in Case C-31/09 Nawras Bolbol v Bevándorlási és
Állampolgársági Hivatal, 17 June 2010. 26 Ibidem, par. 25-27. 27 Ibidem, par. 31.
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meaning of Article 1A of the Geneva Convention, which must be determined on a case-by-case
basis.28
The referring court, the Budapest Municipal Court, assessed that, due to the lack of clarity of
Article 1D of the Geneva Convention, and due to the fact that the Qualification Directive includes a
reference to Article 1D in its own Article 12(1)(a),29 the Court of Justice had jurisdiction to interpret
the meaning of this specific Article from the 1951 Convention. Therefore, it asked the Court for a
preliminary ruling in the matter, in order to clarify, among others, whether, for the purposes of Article
12(1)(a) of Council Directive 2004/83/EC, someone must be regarded as a person receiving the
protection and assistance of a United Nations agency merely by virtue of the fact that he is entitled to
assistance or protection, or is it also necessary for him to actually avail himself of that protection or
assistance (and what does “cessation of the agency's protection or assistance” mean).30
The Court of Justice (now, of the European Union) stated, first of all, that the Qualification
Directive was adopted on the basis of, among others, Article 63 EC (current Article 78 TFUE - N/N),
which required the Council of the European Union to adopt measures on asylum, in accordance with
the Geneva Convention and other relevant treaties, within the area of minimum standards with respect
to the qualifications of nationals of third countries as refugees. Also, the Court considers that “the
Geneva Convention constitutes the cornerstone of the international legal regime for the protection of
refugees, and the provisions of the Directive must be interpreted in the light of its general scheme and
purpose,” while respecting the Geneva Convention and the other relevant treaties referred to in point
(1) of the first subparagraph of Article 63 EC – “Those provisions must also (...) be interpreted in a
manner which respects the fundamental rights and the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.”31 As to the questions raised by the referring
Hungarian court, the Court of Justice stated that Article 1D of the Geneva Convention, to which
Article 12(1)(a) of the Directive refers, merely excludes from the scope of that convention those
persons who are “at present receiving” protection or assistance from an organ or agency of the United
Nations other than UNHCR - hence, “only those who have actually availed themselves of the
assistance provided by UNRWA come within the clause excluding refugee status set out therein,
which must, as such, be construed narrowly and cannot therefore also cover persons who are or have
been eligible to receive protection or assistance from that agency.” Moreover, while registration with
UNRWA is sufficient proof of actually receiving assistance from it (...), such assistance can be
provided even in the absence of such registration, in which case the beneficiary must be permitted to
adduce evidence of that assistance by other means'32 - while it was clear that Ms. Bolbol had not
availed herself of protection or assistance from the UNRWA. Therefore, the ruling of the Court was
that, “for the purposes of the first sentence of Article 12(1)(a) of Council Directive 2004/83/EC (...), a
28 Ibidem, par. 32. 29 'A third country national or a stateless person is excluded from being a refugee, if: (a) he or she falls within the
scope of Article 1 D of the Geneva Convention, relating to protection or assistance from organs or agencies of
the United Nations other than the United Nations High Commissioner for Refugees. When such protection or
assistance has ceased for any reason, without the position of such persons being definitely settled in accordance
with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso
facto be entitled to the benefits of this Directive' - Directive 2004/83/EC, Article 12 (1)(a). 30 Judgment of the Court of Justice (Grand Chamber) in Case C-31/09 Nawras Bolbol v Bevándorlási és
Állampolgársági Hivatal, 17 June 2010, par. 35. 31 Ibidem, 36-38. 32 Ibidem, par. 50-52.
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person receives protection or assistance from an agency of the United Nations other than UNHCR
when that person has actually availed himself of that protection or assistance.”33
Another important judgment was issued by the Court in what concerns Article 12 of the
Qualification Directive. In the Joined Cases B and D,34 where B and D were Turkish nationals of
Kurdish origin, the issue raised was that of Article 12 (2) (b) and (c), stating that “A third country
national or a stateless person is excluded from being a refugee where there are serious reasons for
considering that: (...) (b) he or she has committed a serious non-political crime outside the country of
refuge prior to his or her admission as a refugee; which means the time of issuing a residence permit
based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly
political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of
acts contrary to the purposes and principles of the United Nations as set out in the Preamble and
Articles 1 and 2 of the Charter of the United Nations.”
B. entered Germany at the end of 2002, where he applied for asylum and for protection as a refugee
and, in the alternative, for an order prohibiting his deportation to Turkey. To support his application, B
stated, inter alia, that, in Turkey, he had been a sympathiser of Dev Sol (now DHKP/C) when he was
still in school and that, from the end of 1993 until the beginning of 1995, he had supported armed
guerrilla warfare in the mountains. Being arrested in February 1995, he had been subjected to serious
physical abuse and had been forced to give a statement under torture, hence was sentenced to life
imprisonment in December 1995. In 2001, while he was in custody, B received another life sentence
after confessing to having killed a fellow prisoner suspected of being an informant. Taking advantage
of a six-month conditional release from custody on health grounds, he left Turkey and arrived in
Germany in December 2002.35
D. has resided in Germany since May 2001, and, on 11 May 2001, he applied for asylum. He
stated, among others, that, in 1990, he had fled to the mountains, where he joined the PKK. He had
been a guerrilla fighter for the PKK and one of its senior officials and, at the end of 1988, the PKK
had sent him to northern Iraq. D had left the PKK in May 2000 because of political differences with its
leadership, and since then had been under threat. He had stayed on in northern Iraq for about one more
year, but had not been safe there. He was granted asylum in May 2011, and was recognized as a
refugee, but a change in national law made it possible for the favourable decision to be overturned.36
Responding by preliminary ruling to the questions raised by the Federal Republic of Germany
regarding the application of Article 12 (2) (b) and (c), the Court of Justice stated that this article must
be interpreted as meaning, first of all, that the fact that a person has been a member of an organisation
which (because of its involvement in terrorist acts) is on the list forming the Annex to Common
Position 2001/931/CFSP (...) and that that person has actively supported the armed struggle waged by
that organisation does not automatically constitute a serious reason for considering that that person has
committed “a serious non-political crime” or “acts contrary to the purposes and principles of the
United Nations.” Second of all, the finding, in such a context, that there are serious reasons for
considering that a person has committed such a crime or has been guilty of such acts is conditional on
an assessment on a case-by-case basis of the specific facts, with a view to determining whether the
acts committed by the organisation concerned meet the conditions laid down in those provisions and
33 Ibidem, Ruling. 34 Judgment of the Court of Justice (Grand Chamber) in Joined Cases of C-57/09 Bundesrepublik Deutschland v
B and C-101/09 Bundesrepublik Deutschland v D, 9 November 2010. 35 Ibidem, par. 43-48. 36 Ibidem, par. 56-63.
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whether individual responsibility for carrying out those acts can be attributed to the person concerned,
regard being had to the standard of proof required under Article 12(2) of the directive'. Moreover, the
Court stated that “exclusion from refugee status pursuant to Article 12(2)(b) or (c) of Directive
2004/83 is not conditional on the person concerned representing a present danger to the host Member
State', nor on 'an assessment of proportionality in relation to the particular case.”37
After the judgment of the European Court of Human Rights in the M.S.S. case (M.S.S. v. Belgium
and Greece, Grand Chamber European Court of Human Rights Judgment of January 21, 2011),
through which the ECtHR condemned the automatic application of the Dublin Regulation by Member
States for determining which Member State was responsible for examining the asylum application, the
Court of Justice was asked to take over the case law from Strasbourg in the judgment of N.S. of
December 21, 2011 regarding the Dublin Regulation, in order to provide some general guidance on
EU asylum policy, on the basis of Article 18 of the EU Charter of Fundamental Rights and Article 78
of the TFEU (which states that a common European asylum system should be based on full
compliance with the Geneva Convention)38. The ECtHR decided that the Belgian authorities should
not have expelled M.S.S., an asylum seeker, to Greece, in light of the fact that, according to Dublin II,
Greece was the first country of entry of the applicant within the European Union, and was thus
charged with the decision of granting asylum or not to the applicant. Among others, the ECtHR
condemned both the deficiencies in the asylum procedures (breaches of Article 13 ECHR) and
detention and living conditions (amounting to breaches of Article 3 ECHR) in Greece, and the
decision of Belgium to send him back to Greece, for having exposed him to these conditions (the
reaction of Belgium also amounting to a breach of Article 3).
Therefore, in Joined Cases N.S. and M.E. and others,39 the Court of Justice of the European Union
was asked for a preliminary ruling regarding Article 3(2) of Council Regulation (EC) No 343/2003 of
18 February 2003 (Regulation Dublin II),the fundamental rights of the European Union, including the
rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European
Union, and Protocol (No 30) on the application of the Charter to Poland and to the United Kingdom.
These two references have been made in proceedings that took place between asylum seekers who
were to be returned to Greece pursuant to Regulation No 343/2003 and the United Kingdom (N.S.)
and Irish authorities (M.E. and others).40
N.S. was an Afghan national who came to the United Kingdom after travelling through, among
other countries, Greece. He was arrested in Greece on 24 September 2008, but did not make an asylum
application. He claimed that the Greek authorities detained him for four days and, on his release, gave
him an order to leave Greece within 30 days; when he tried to leave Greece, he was arrested by the
police and was expelled to Turkey, where he was detained in appalling conditions for two months.
N.S. states that he escaped from his place of detention in Turkey and travelled from that State to the
United Kingdom, where he arrived on 12 January 2009 and where he lodged an asylum application
that same day. On 1 April 2009, the Secretary of State for the Home Department made a request to the
Hellenic Republic, according to Article 17 of Regulation No 343/2003, to take charge of the appellant
37 Ibidem, Ruling. 38 Henry Labayle and Philippe de Bruycker, The Influence of ECJ and ECtHR case law on asylum and
immigration. Study (European Parliament, Directorate-General for Internal Policies, Policy Department C,
Citizens' Rights and Constitutional Affairs: 2012), 4, http://www.europarl.europa.eu/RegData/etudes/etudes/join/
2012/462438/IPOL-LIBE_ET(2012)462438(SUM01)_EN.pdf (accessed January 15, 2016). 39 Judgment of the Court of Justice (Grand Chamber) in Joined Cases of C-411/10 N.S. v The United Kingdom
and C-493/10 M.E. and others v Ireland, 21 December 2011. 40 Ibidem, par. 1-2.
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in the main proceedings in order to examine his asylum application. Since the Hellenic Republic failed
to respond to that request within the time limit stipulated by Article 18(7) of the Regulation, it was
accordingly deemed to have accepted responsibility for examining the appellant’s claim, pursuant to
that provision, on June 18, 2009. His further attempts at preventing this situation have been denied,
however, judicial review of the last refusal he had received was granted, and he eventually received
the right to appeal to the Court of Appeal, England & Wales, Civil Division.41 This Court was aware
that asylum procedures in Greece are said to have serious shortcomings (applicants encounter
numerous difficulties in carrying out the necessary formalities; they are not provided with sufficient
information and assistance; their claims are not examined with due care), that the proportion of asylum
applications which are granted is extremely low, that judicial remedies are stated to be inadequate and
very difficult to access, and that the conditions for reception of asylum seekers are considered to be
inadequate: applicants are either detained in inadequate conditions or they live outside in destitution,
without shelter or food.42 Therefore, the previously mentioned Court of Appeal requested a
preliminary ruling on whether a decision made by a Member State under Article 3(2) of Regulation
343/200343 to examine a claim for asylum which is not its responsibility according to Chapter III of
the Regulation falls within the scope of EU law for the purposes of Article 6 [TEU] and/or Article 51
of the Charter; if so, the Court of Appeal asked, among others, whether the duty of a Member State to
observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the
Charter) is discharged where that State sends the asylum seeker to the Member State which Article
3(1) of Regulation No 343/2003 designates as the responsible State in accordance with the criteria set
out in Chapter III of the regulation (“the responsible State”), regardless of the situation in the
responsible State.44
As for M.E. and the other four appellants in the national proceedings, each of them (unconnected
with each other) travelled via Greece and were arrested for illegal entry. They then travelled to Ireland,
where they claimed asylum. Each of them resisted the return to Greece, not invoking Article 3 ECHR,
but claiming that the procedures and conditions for asylum seekers in Greece are “inadequate” and that
”Ireland is therefore required to exercise its power under Article 3(2) of Regulation No 343/2003 to
accept responsibility for examining and deciding on their asylum claims.” The High Court requested a
preliminary ruling on whether the transferring Member State under Regulation (EC) No 343/2003 is
obliged to assess the compliance of the receiving Member State with Article 18 of the Charter, and
documents such as Directives 2003/9/EC, 2004/83/EC and 2005/85/EC and Regulation (EC) No
343/2003, and, if the answer is positive, and if the receiving Member State is found not to be in
41 Ibidem, par. 34-43. 42 Ibidem, par. 44. 43 Article 3 states, in its first two paragraphs, that: '
1. Member States shall examine the application of any third-country national who applies at the border or in their
territory to any one of them for asylum. The application shall be examined by a single Member State, which shall
be the one which the criteria set out in Chapter III indicate is responsible.
2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged
with it by a third-country national, even if such examination is not its responsibility under the criteria laid down
in this Regulation. In such an event, that Member State shall become the Member State responsible within the
meaning of this Regulation and shall assume the obligations associated with that responsibility. Where
appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure
for determining the Member State responsible or the Member State which has been requested to take charge of
or take back the applicant'. 44Judgment of the Court of Justice (Grand Chamber) in Joined Cases of C-411/10 N.S. v The United Kingdom
and C-493/10 M.E. and others v Ireland, 21 December 2011, par. 50.
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compliance with one or more of those provisions, the transferring Member Sate is obliged to accept
responsibility for examining the application under Article 3(2) of Regulation (EC) No 343/2003.45
The Court of Justice ruled, first of all, that the decision adopted by a Member State according to
Article 3(2) of Council Regulation (EC) No 343/2003 whether to examine an asylum application
which is not its responsibility according to the criteria laid down in Chapter III of that Regulation does
implement European Union law for the purposes of Article 6 TEU and/or Article 51 of the Charter of
Fundamental Rights of the European Union. Secondly, the Court stated that European Union law
“precludes the application of a conclusive presumption that the Member State which Article 3(1) of
Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European
Union.” Therefore, the Court ruled, in a groundbreaking formulation for EU law, that “Article 4 of the
Charter of Fundamental Rights of the European Union must be interpreted as meaning that the
Member States, including the national courts, may not transfer an asylum seeker to the “Member State
responsible” within the meaning of Regulation No 343/2003 where they cannot be unaware that
systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that
Member State amount to substantial grounds for believing that the asylum seeker would face a real
risk of being subjected to inhuman or degrading treatment within the meaning of that provision.”
Moreover, “subject to the right itself to examine the application referred to in Article 3(2) of
Regulation No 343/2003, the finding that it is impossible to transfer an applicant to another Member
State, where that State is identified as the Member State responsible in accordance with the criteria set
out in Chapter III of that regulation, entails that the Member State which should carry out that transfer
must continue to examine the criteria set out in that chapter in order to establish whether one of the
following criteria enables another Member State to be identified as responsible for the examination of
the asylum application.” Hence, “the Member State in which the asylum seeker is present must ensure
that it does not worsen a situation where the fundamental rights of that applicant have been infringed
by using a procedure for determining the Member State responsible which takes an unreasonable
length of time. If necessary, the first mentioned Member State must itself examine the application in
accordance with the procedure laid down in Article 3(2) of Regulation No 343/2003.”46
The argument seems to “continue” in the Kaveh Puid Case,47 the Court stating that, “where the
Member States cannot be unaware that systemic deficiencies in the asylum procedure and in the
conditions for the reception of asylum seekers in the Member State initially identified as responsible in
accordance with the criteria set out in Chapter III of Council Regulation (EC) No 343/2003 (...)
provide substantial grounds for believing that the asylum seeker concerned would face a real risk of
being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of
Fundamental Rights of the European Union (...), the Member State which is determining the Member
State responsible is required not to transfer the asylum seeker to the Member State initially identified
as responsible and, subject to the exercise of the right itself to examine the application, to continue to
examine the criteria set out in that chapter, in order to establish whether another Member State can be
identified as responsible in accordance with one of those criteria or, if it cannot, under Article 13 of
the Regulation. Conversely, in such a situation, a finding that it is impossible to transfer an asylum
seeker to the Member State initially identified as responsible does not in itself mean that the Member
45 Ibidem, par. 51-53. 46 Ibidem, Ruling. 47 Judgment of the Court of Justice (Grand Chamber) in Case C-4/11 Bundesrepublik Deutschland v Kaveh
Puid, 14 November 2013.
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State which is determining the Member State responsible is required itself, under Article 3(2) of
Regulation No 343/2003, to examine the application for asylum.”48
IV. Conclusion
It is fair to assess that the European Court of Human Rights played a major role in the development of
the standards applicable to asylum seekers and individuals requesting subsidiary protection, in spite of
the lack of a 'right of asylum' in the European Convention. Especially the 'protection par ricochet'
granted in what concerns breaches of Article 3 (including if such breaches came from the application
of important pieces of EU legislation) determined a more careful consideration by the states that are
member to the EU as well - it is sufficient to consider the fact that the judgment in the M.S.S. case led
many European states to suspend the application of the Dublin system in what concerns Greece.
However, the ECtHR has an experience of over 25 years in the field, unlike the CJEU, and this
amount of time also granted it the trust of the applicants - an area in which the CJEU might still need
to work.
The Court of Justice of the European Union assumed the role of dealing with human rights in
general and the right of asylum in particular in a serious manner, following the lead of ECtHR, but
having the Charter of Fundamental Freedoms at hand. The fact that the Charter does contain a specific
provision for the right to asylum, although perhaps not invoked often enough (and the referring courts
may be to blame in this issue), may give rise to more and more ambitious developments of the EU
legislation in matters of asylum and subsidiary protection. Already, the numerous claims against the
Qualification Directive and The Dublin II Regulation led to their revision and improvement, as well as
of the other directives in this field. That means that the Court of Justice actively participates in the
enhancement of EU law regarding asylum, which, if we are to take into consideration the 2015
“refugee crisis,” offers enough room for debate and is in need of another serious revision.
Since the two major European courts seem to be in agreement in similar issues brought to their
attention, the EU and its Court of Justice pledging allegiance to the European Convention on Human
Rights and applying it accordingly, and the EU even acceding to it, the future of the protection granted
to vulnerable categories such as asylum seekers does not seem to be in everlasting trouble, as it
currently seems. Solutions such as the one adopted towards Greece (who claims to be making efforts
towards no longer being considered a “black sheep” in terms of its procedures, detention conditions
and so on) could be adopted anytime towards any of the other member states located at the frontiers of
the Union - states on which the pressure caused by the increase in number of applicants and
enforcement of Dublin system is at least disproportionate to their resources and possibilities. The
Court of Justice has a multitude of instruments at hand, both in terms of legislation to be applied and
in terms of its authority - it can provide interpretations of legislation through preliminary rulings, it
can decide upon breaches of obligations by the member states, it can annul pieces of EU legislation or
sanction EU institutions etc. Using these instruments wisely, more precisely, always considering
respect for human rights in the centre of its decisions, can highly determine both the protection of the
vulnerable and the trust of the potential applicants.
48 Ibidem, Ruling.
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